Cardona-Hernandez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 22-410
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISAAC CARDONA-HERNANDEZ, No. 22-410

Petitioner, Agency No. A043-281-809/

v.

MERRICK B. GARLAND, U.S. Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 20, 2023** San Francisco, California

Before: SCHROEDER, CALLAHAN and BUMATAY, Circuit Judges.

Isaac Cardona-Hernandez, a citizen of Guatemala, petitions for review of a

decision by the Board of Immigration Appeals (BIA) affirming the Immigration

Judge’s (IJ) admission of criminal conviction records in removal proceedings and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). denying him relief from removal to Guatemala. We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition for review.

We review the BIA’s determination of legal questions de novo but review

the BIA’s findings of fact for substantial evidence and will uphold them unless the

evidence compels a contrary result. Padilla-Martinez v. Holder, 770 F.3d 825, 830

(9th Cir. 2014).

Cardona-Hernandez alleges that the conviction records submitted by the

Department of Homeland Security (DHS) during his removal proceedings were not

properly authenticated under 8 U.S.C. § 1229a(c)(3)(C) and therefore could not

provide the basis for removal under 8 U.S.C. § 1227(a)(2)(A)(iii), based on a

conviction of rape in violation of California Penal Code § 261(a)(2), an aggravated

felony as defined by 8 U.S.C. § 1101(a)(43)(A). His argument is not persuasive.

Criminal conviction records “may be authenticated under INS regulations, or

by ‘any procedure that comports with common law rules of evidence.’” Sinotes-

Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006) (quoting Iran v. I.N.S., 656

F.2d 469, 472 n.8 (9th Cir. 1981)). “Admissibility is generally warranted as long

as there is ‘some sort of proof that the document is what it purports to be.’”

Padilla-Martinez, 770 F.3d 825 at 833 (quoting Sinotes-Cruz, 468 F.3d at 1196).

The conviction records submitted by DHS contain sufficient indicia of

reliability to be admissible as evidence in Cardona-Hernandez’s removal

2 proceedings. First, the conviction records on their face give every indication of

being official Los Angeles County Superior Court records, particularly the abstract

of judgment. The abstract of judgment, which details Cardona-Hernandez’s rape

conviction and sentence, is embossed with a seal from the Los Angeles County

Superior Court on the first page and is signed by a clerk of the court on each of the

remaining pages. See 8 C.F.R. § 1003.41(a)(5); Padilla-Martinez, 770 F.3d at 833

(holding that a facsimile copy of a transcript of a state court change-of-plea

proceeding had sufficient indicia of reliability on its face to establish admissibility,

even absent authentication from an immigration official).

Second, a deportation officer from United States Immigration and Customs

Enforcement certified in writing that he received the conviction records by

facsimile from the state prison where Cardona-Hernandez was housed. The

prison’s facsimile cover sheet includes an employee’s attestation that the

documents are copies of Cardona-Hernandez’s official records. It also lists the

same California Department of Corrections and Rehabilitation and Criminal

Identification and Information numbers as those reflected on the embossed abstract

of judgment. See Sinotes-Cruz, 468 F.3d at 1196 (admitting faxed copies of

conviction records that were certified by an immigration official and appeared to

be state court records even though certification by a state official was lacking).

3 In sum, regardless of Cardona-Hernandez’s other arguments, the abstract of

judgment supported by the deportation officer’s certification is admissible and

sufficient to establish Cardona-Hernandez’s conviction of an aggravated felony in

his removal proceedings.

The petition is DENIED.